On October 6th we told you about the 2nd Circuit decision holding that an FBA (Functional Behavioral Assessment) is not an “evaluation” that triggers a parent’s right to request an IEE (Independent Educational Evaluation) at public expense. That same decision included another important legal conclusion: that a parent can request an IEE at any time prior to the next full three year evaluation. The statute of limitations does not apply.
I probably just lost all Loyal Daily Dawg Readers save for the Hard Core Special Ed Types. That’s OK. If your eyes just glazed over, tune in tomorrow when we tell you how to botch a teacher aide’s evaluation. For today, on to IEEs and such.
The school district argued that the parent’s request for an IEE was too late, barred by the statute of limitations. To which the court responded: statute of limitations? What statute of limitations??
The court reasoned this way: the statute of limitations begins when the parent knows or should know about some error by the school district in connection with services to the student. For example, if the school held an ARD meeting without inviting the parent to attend, the statute would begin to run on the day when the parent found out about that. But an IEE request is not triggered by any error by the school district. The district may have dotted every i, crossed every t and met every timeline. The parent can still set the IEE train in motion simply by saying “I disagree with your evaluation. I’d like you to pay for an independent one.” This turns the tables. It puts the burden on the school district to either 1) comply with that request; or 2) ask for a due process hearing to show that its evaluation was properly done.
The school district has asked the court to reconsider this part of its ruling, and if that motion is denied, there may be an effort to get this one to the Supreme Court. For the lawyers, this case is a must read. For Hard Core Special Ed Types, make sure your lawyer is aware of this case. It’s D.S. v. Trumbull, decided by the 2nd Circuit on September 17, 2020. We found it at Special Ed Connection, 120 LRP 28133.
DAWG BONE: WE HAVE A ONE YEAR STATUTE OF LIMITATIONS IN TEXAS FOR SPECIAL EDUCATION COMPLAINTS.
Tomorrow: the importance of personnel evaluations